Volume 4, Number 8

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  July 2009 


Special Message

        
Dear Members,

In an effort to encourage peer to peer networking during difficult times, if you have recently changed your law firm or corporate affiliation and would like to make the readers of this Newsletter aware of your new location, send me an e-mail and I will try to include your new contact information in the next edition.

Sincerely,

Norm Chernin, co-editor, Real Property Newsletter
E-mail address: nchernin@firstam.com


- Real Property Scheduled Events - View All Real Property Events  Sign Up Now -

July 24, 2009: First Annual Leadership Meet and Greet. Great networking event.


Recent Cases

Cases from June 1 through June 30

-Bankruptcy-
-CEQA-
-CEQA-
-Construction Law-
-Easements-
-Eminent Domain-
-Federal Housing Loan Programs-
-Landlord and Tenant-
-Low-income Housing-
-Mechanic's Liens-
-Real Estate Broker-
-Real Property Litigation-
-Real Property Litigation-
-Real Property Litigation-
-Real Property Taxation-
-Real Property Taxation-
-Real Property Taxation-
-Rent Control-

-Bankruptcy-
Where plaintiffs obtained a default judgment against defendant as a discovery sanction and obtained a judgment lien against defendant’s real property--and defendant filed for bankruptcy and purported to convey this property to a third party transferee without the authorization of the bankruptcy court or trustee by quitclaim deed before plaintiffs filed an application for renewal of judgment--such conveyance failed to convey any interest in the property, and as transferee failed to show she was a bona fide purchaser for value and did not know of transferor’s bankruptcy, transferee lacked any interest in the property and was not entitled to personal service of the application for renewal of the judgment under Code of Civil Procedure 683.180. Default and default judgment against defendant were not void, but at most were voidable, because the trial court had fundamental jurisdiction over the parties and the subject matter. Defendant could not challenge the default and default judgment under Code of Civil Procedure Sec. 473(d), and, having waited 12 years, his motion to set aside the default and default judgment under Sec. 473(b) was untimely.
     Johnson v. E-Z Insurance Brokerage, Inc. - filed June 22, 2009, Fourth District, Div. Three
     Cite as G040241
     Full text

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-CEQA-
Approval of design plan application for commercial building by agency charged with responsibility for establishing reuse plan for former military base was ministerial, rather than discretionary--and thus exempt from CEQA review--where agency's responsibilities were limited to determining whether application was consistent with the requirements, fixed standards, and proposed mitigation of previously approved specific plan, focused EIR, and design guidelines, and completion of a checklist of about 125 yes-or-no questions regarding implementation of those items.
     Health First v. March Joint Powers Authority (Tesco Stores West, Inc.) - filed May 18, 2009, certified for publication June 10, 2009, Fourth District, Div. Two
     Cite as E045541
     Full text

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-CEQA-
Public Resources Code Sec. 21167.6, setting forth the contents of the administrative record in a CEQA proceeding, does not abrogate the attorney-client privilege or work product privilege. Agency did not waive attorney-client privilege by disclosing communication from its outside CEQA counsel to real party in interest in connection with the parties’ joint defense in litigation regarding approval of EIR.
     California Oak Foundation v. County of Tehama (Del Webb California Corp.) - filed June 11, 2009, Third District
     Cite as 2009 SOS 3604
    
  Full text

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-Construction Law-
Where unlicensed contractor's employee was injured while working on garage conversion, homeowner's duty to contractor's employee is one of ordinary care. Homeowner was not liable, as a matter of law, for injuries suffered by contractor's employee where plaintiff--who fell from a ladder at a height of nine feet while attempting to remove a nail from a wall--was the sole person who placed, adjusted, and then climbed the ladder before he fell; there were no allegations that the ladder was defective; and any ordinary adult person would have known that the maneuver posed significant risk.
     Zaragoza v. Ibarra - filed June 8, 2009, Fourth District, Div. Three
     Cite as 2009 SOS 3533
    
Full text

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-Easements-
Trial court’s denial of an injunction prohibiting defendants from using a roadway across plaintiffs’ land, and order quieting title to an equitable easement in favor of defendants, were factually and legally supported where the only access to defendants’ property was across the roadway, and there was expert testimony that there were multiple ways that plaintiffs could accomplish their goal of building a home on the parcel with the roadway in place, so that there was no loss or insignificant loss to the plaintiffs, whereas there would have been catastrophic loss to the defendants had an injunction been granted. Trial court was not required to award damages to plaintiff based on the granting of an easement where there was no credible evidence of damages. Trial court abused its discretion by granting a right of way whose width exceeded that which the evidence proved necessary. Trial court’s grant of judgment in favor of defendants on plaintiffs’ cause of action to quiet title against any claim of an easement for utilities across plaintiffs’ land was error where defendants disclaimed any such easement. Trial court did not abuse discretion in awarding costs to defendants under Code of Civil Procedure Sec. 998 where plaintiffs’ limited success in obtaining right to move utility poles at their own expense and in obtaining remand on appeal with respect to the width of easement for access did not render judgment more favorable to them than defendants’ rejected settlement offer. Had plaintiffs accepted the offer, they would have been in same position as after judgment with respect to the primary issue--whether defendants were entitled to access, which plaintiffs sought to deny completely--and would also have received a release of claims not involved in the litigation and avoided liability for defendants’ costs.
     Linthicum v. Butterfield - filed June 24, 2009, Second District, Div. Six
     Cite as 2009 SOS 3874
    
 Full text

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-Eminent Domain-
Owner of a business conducted on property taken by eminent domain who seeks compensation for loss of goodwill caused by the government taking is not required to prove he is the owner or has a written lease on the property that is taken. Trial court erred in concluding as a matter of law that a month-to-month tenant was not entitled to compensation for goodwill.
     Los Angeles Unified School District v. Pulgarin - filed June 23, 2009, Second District, Div. Four
     Cite as B206892
     Full text

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-Federal Housing Loan Program-
Where borrower purchased property as part of the National Housing Act loan program and was required to use that property as low-income housing until she fully repaid the loans, borrower could not tender payment of the outstanding balance before the loans came due under the Emergency Low Income Housing Preservation Act. Loan’s maturity dates were not the dates by which the total loan balances would be paid based on the loan documents’ monthly installment schedules, but rather the dates the loan documents identified as the "due and payable" dates. Until loan period expired or borrower completed the act’s prepayment procedures, borrower was bound to continue using her property as low-income housing. District court did not abuse its discretion in declining to quiet title to borrower’s property, assuming such remedy was available, as borrower had an adequate legal remedy, and the importance of preserving low-income housing units outweighed the burden to borrower of complying with ELIHPA.
     Schroeder v. United States - filed June 22, 2009 
     Cite as 07-36073
    
 Full text

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-Landlord and Tenant-
Where defendant was both a client of plaintiff law firm and its landlord, parties agreed to allow plaintiff to deduct its legal fees from rent owed to defendant, and dispute arose over plaintiff's alleged liability for rent--in part because defendant claimed plaintiff committed malpractice and was not owed legal fees--defendant's demand for binding arbitration of his "eviction claim" was in effect a malpractice claim and thus constituted a waiver of his statutory right to non-binding arbitration of plaintiff's claim for unpaid attorney fees. Order compelling binding arbitration under California Arbitration Act of dispute over attorney fees was proper, despite plaintiff's failure to produce signed retainer agreement containing arbitration clause, where attorney fee dispute and dispute over unpaid rent were interrelated, and lease agreement contained a broadly worded arbitration clause.
     Fagelbaum & Heller LLP v. Smylie - filed June 2, 2009, publication ordered June 16, 2009, Second District, Div. Eight
     Cite as 2009 SOS 3694
    
 Full text

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-Low-income Housing-
Where borrower purchased property as part of the National Housing Act loan program and was required to use that property as low-income housing until she fully repaid the loans, borrower could not tender payment of the outstanding balance before the loans came due under the Emergency Low Income Housing Preservation Act. Loan’s maturity dates were not the dates by which the total loan balances would be paid based on the loan documents’ monthly installment schedules, but rather the dates the loan documents identified as the "due and payable" dates. Until loan period expired or borrower completed the act’s prepayment procedures, borrower was bound to continue using her property as low-income housing. District court did not abuse its discretion in declining to quiet title to borrower’s property, assuming such remedy was available, as borrower had an adequate legal remedy, and the importance of preserving low-income housing units outweighed the burden to borrower of complying with ELIHPA.
     Schroeder v. United States - filed June 22, 2009
     Cite as 07-36073
    
 Full text

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-Mechanic's Liens-
Removal of buildings constitutes a "work of improvement" that may give rise to a mechanic’s lien on that property.
     United Rentals Northwest, Inc. v. Snider Lumber Products, Inc. - filed June 18, 2009, Fifth District
     Cite as 2009 SOS 3771
    
Full text

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-Real Estate Broker-
Landlord’s criminal violations of housing laws were sufficiently related to his qualifications as a licensed real estate broker to support revocation of license by Department of Real Estate.
     Robbins v. Davi - filed June 23, 2009, Second District, Div. Eight
     Cite as 2009 SOS 3868
    
 Full text

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-Real Property Litigation-
Government Code Sec. 25845(c)--which limits the amount of a prevailing party’s attorney fees in a nuisance abatement action to those incurred by the county--does not override the freedom to contract for a different outcome.
     County of Sacramento v. Sandison - filed May 29, 2009, Third District
     Cite as 2009 SOS 3141
    
 Full text

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-Real Property Litigation-
Where plaintiffs obtained a default judgment against defendant as a discovery sanction and obtained a judgment lien against defendant’s real property--and defendant filed for bankruptcy and purported to convey this property to a third party transferee without the authorization of the bankruptcy court or trustee by quitclaim deed before plaintiffs filed an application for renewal of judgment--such conveyance failed to convey any interest in the property, and as transferee failed to show she was a bona fide purchaser for value and did not know of transferor’s bankruptcy, transferee lacked any interest in the property and was not entitled to personal service of the application for renewal of the judgment under Code of Civil Procedure 683.180. Default and default judgment against defendant were not void, but at most were voidable, because the trial court had fundamental jurisdiction over the parties and the subject matter. Defendant could not challenge the default and default judgment under Code of Civil Procedure Sec. 473(d), and, having waited 12 years, his motion to set aside the default and default judgment under Sec. 473(b) was untimely.
     Johnson v. E-Z Insurance Brokerage, Inc. - filed June 22, 2009, Fourth District, Div. Three
     Cite as G040241
    
 Full text

Back to Top


-Real Property Litigation-
Trial court’s denial of an injunction prohibiting defendants from using a roadway across plaintiffs’ land, and order quieting title to an equitable easement in favor of defendants, were factually and legally supported where the only access to defendants’ property was across the roadway, and there was expert testimony that there were multiple ways that plaintiffs could accomplish their goal of building a home on the parcel with the roadway in place, so that there was no loss or insignificant loss to the plaintiffs, whereas there would have been catastrophic loss to the defendants had an injunction been granted. Trial court was not required to award damages to plaintiff based on the granting of an easement where there was no credible evidence of damages. Trial court abused its discretion by granting a right of way whose width exceeded that which the evidence proved necessary. Trial court’s grant of judgment in favor of defendants on plaintiffs’ cause of action to quiet title against any claim of an easement for utilities across plaintiffs’ land was error where defendants disclaimed any such easement. Trial court did not abuse discretion in awarding costs to defendants under Code of Civil Procedure Sec. 998 where plaintiffs’ limited success in obtaining right to move utility poles at their own expense and in obtaining remand on appeal with respect to the width of easement for access did not render judgment more favorable to them than defendants’ rejected settlement offer. Had plaintiffs accepted the offer, they would have been in same position as after judgment with respect to the primary issue--whether defendants were entitled to access, which plaintiffs sought to deny completely--and would also have received a release of claims not involved in the litigation and avoided liability for defendants’ costs.
     Linthicum v. Butterfield - filed June 24, 2009, Second District, Div. Six
     Cite as 2009 SOS 3874
    
 Full text

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-Real Property Taxation-
When a lawsuit challenges assessments imposed on specific parcels of real property under Municipal Improvement Act of 1913, for noncompliance with proportionality requirement of Art. XIII D of the state constitution, plaintiff is not required to comply with the requirements governing validation proceedings brought under Code of Civil Procedure Sections 860 through 870.5.
     Bonander v. Town of Tiburon - filed June 8, 2009
     Cite as 2009 SOS 3227
    
 Full text

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-Real Property Taxation-
Revenue and Taxation Code Section 5097, which generally provides that a taxpayer seeking a refund of property taxes must file a verified claim within four years after making the payment of the disputed tax, applies to action seeking a refund of fraud penalties imposed under previous versions of Sections 503 and 504. Federal declaratory action by taxpayer, seeking determination that federal law preempted assessor’s ruling that a taxable change in ownership occurred with respect to property, was not tantamount to a tax refund claim. Code of Civil Procedure Sec. 355, which allows one year for the filing of a new lawsuit when a judgment for the plaintiff in a prior suit is reversed other than on the merits, does not extend the time in which to file a Section 5097 claim when the taxpayer was not the plaintiff in the prior litigation.
     JPMorgan Chase Bank, N.A. v. City and County of San Francisco - filed June 11, 2009, First District, Div. Five
     Cite as 2009 SOS 3608
    
 Full text

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-Real Property Taxation-
Income beneficiaries of a trust that owned a shopping center complex had a present interest in improvements on the property constructed and owned by lessee and sub-lessees because such improvements were part of the property that had to be surrendered to the lessor in good condition at the expiration or earlier termination of the lease. By receiving rent income from trust property, beneficiaries had beneficial use of that property, even though they did not have legal title. A lifetime beneficiary receiving the rental value of a parcel of real property is considered under the law to be receiving value substantially equal to the value of the fee interest.
     Phelps v. Orange County Assessment Appeals Board No. 1 (Guillory) - filed May 27, 2009, publication ordered June 24, 2009, Fourth District, Div. Three
     Cite as 2009 SOS 4007
    
 Full text

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-Rent Control-
Plaintiff’s wrongful eviction and unlawful rent demand claims under local rent control ordinance were barred by the litigation privilege to the extent they were based on defendant’s unlawful detainer action and on three-day notice to quit that was a prerequisite to that action. To the extent that tenant's claims under rent control ordinance were based on landlord's service of a notice of rent increase pursuant to Costa-Hawkins Act, action was barred by the litigation privilege if litigation was contemplated in good faith and under serious consideration at the time the notice was sent.
     Bisno v. Douglas Emmett Realty Fund 1988 - filed June 19, 2009, Second District, Div. One
     Cite as 2009 SOS 3789
    
 Full text

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Reader Reactions
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Los Angeles County Bar Association
2009 Real Property Section Newsletter
REAL PROPERTY SECTION REVIEW
Daniel L. Goodkin, Editor    *   Norman A. Chernin, Co-Editor

SECTION OFFICERS
Chair
Donald C. Nanney

First Vice-Chair
Michael S. Klein

Second Vice-Chair
Pamela L. Westhoff

Treasurer
Gregg J. Loubier

Secretary
Theresa C. Tate

Immediate Past-Chair
Timothy M. Truax

Chair Emeritus
Norma J. Williams,

Section Administrator
Terrina Scott

EXECUTIVE COMMITTEE MEMBERS

Eric Altoon
Nedra E. Austin
Susan J. Booth
James L. Brat
Norman A. Chernin
Brant H. Dveirin
Daniel L. Goodkin
Rebecca H. Lessley

Peter J. Niemiec
D. Eric Remensperger
David C. Sampson
Michael G. Smooke
Linda E. Spiegel
Sarah J. Spyksma
Valerie Wisot
Andrew J. Yamamoto


SUB-SECTION CHAIRS
Commercial Development & Leasing, Marcia Z. Gordon
Construction Law, Brian Ostler
Land Use Planning & Environmental Law, Claire Hervey Collins
Real Estate Finance, Caroline Dreyfus
General Real Estate Law, Nadav Ravid
Title Insurance, David M. Marcus

 

Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after the publication date.